Remedial

Law Review Notes on Final Examination Gardiano

CIVIL PROCEDURE
Jurisdiction
1. To determine if the subject matter of an action is one incapable of pecuniary estimation, it is
necessary to ascertain the nature of the principal action or remedy sought.
§ Annulment of judgments of RTC is an action which is incapable of pecuniary estimation
but is cognizable by the CA.
§ Annulment of judgments of MTC is cognizable by the RTC.
§ Actions questioning the validity of a mortgage is incapable of pecuniary estimation.
§ However, foreclosure of real estate mortgage is a real action as there is an amount of
money involved making it capable of pecuniary estimation.

2. The non-payment of the prescribed docket fees at the time of the filing of the complaint or
other initiatory pleading fails to vest jurisdiction over the case in the trial court.
§ But payment of deficient docket fees would still vest jurisdiction over the case to the
trial court, subject to the payment of the deficiency assessment.

3. Totality Rule
§ Where there are several claims or causes of actions between the same or different
parties, embodied in the same complaint, the amount of the demand shall be the
totality of the claims in all causes of action.

4. The exclusion of the term “damages of whatever kind” in determining jurisdictional amount
applies to cases where the damages are merely incidental to or a consequence of the main
cause of action.
§ However, in cases where the claim for damages is the main cause of action, the amount
of such claim shall be considered in determining the jurisdiction of the court.

Summons
1. Extraterritorial service of summons may be effected by:
§ Personal service out of the country
§ Publication in newspaper of general circulation

Remedial Law Review Notes on Final Examination Gardiano

2. In the second mode of extraterritorial service, the publication must be coupled with
complementary service of summons.
§ But how is complementary service of summons made?
By sending of (1) a copy of the summons and (2) the order of court by registered mail to
the last known address of the defendant.

3. Summary of rules: In extraterritorial service of summons, the publication of summons must
be coupled with the sending of the copy of summons and the order of the court by registered
mail to the last known address of the defendant.

Remedies

1. What are the possible remedies available against a final order and/or judgment?
§ Motion for reconsideration
§ Motion for New Trial
§ Appeal
§ Petition for Relief
§ Annulment of judgment
§ Petition for certiorari
2. MR: Not only available against a final order or judgment. It may be also availed of against an
interlocutory order.
§ Two kinds of MR – the MR under Rule 37 which is available when there is trial on the
merits, and the MR available against a final or interlocutory order (which does not
involve trial on the merits).
3. MNT: Available only when there was a trial done. Generally not available against an order
granting a motion to dismiss (there was no trial).
4. Appeal: Consider the proper mode of appeal. Be particular with the Rule No. (Rules 40-45,
Rules of Court)
§ In other Rules, we don’t need to specify the Rule number but this is the exception as the
Rule number will tell if you have the correct mode of appeal.
§ Always remember the Neypes ruling: the fresh period rule.
5. Petition for Relief: 60 days / 6 months rule
§ Petitioner has no fault of his own.
§ FAME – (Affidavit of merit/ verified)
§ Good and substantial cause of action or defense
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6. Annulment of Judgment: 4 years from discovery of fraud; and before barred by laches or
estoppel if based on lack of jurisdiction.
§ Additional ground – lack of due process
7. Rule 65: Not automatically and always available. There must always be an MR, as a general
rule. And you know, your lack of jurisdiction, excess of jurisdiction, and grave abuse of
discretion amounting to lack or excess of jurisdiction.
§ Rule 65 (petition for certiorari as mode of review) vs. Rule 45 (appeal by certiorari as a
mode of appeal)
§ Do not immediately use this as a remedy if there is a plain, speedy and adequate
remedy (which is of course MR). But remember, there are exceptions.

Katarungang Pambarangay

1. Execution of amicable settlement or arbitration award
§ Vidal vs. Escueta – The 6-month period for execution is reckoned from the date of the
settlement if the obligation under the settlement is due and demandable on the date of
the settlement;
o Otherwise, it should be reckoned from the date the obligation becomes due and
demandable and not from the date of the settlement.


SPECIAL CIVIL ACTIONS

1. Rule 65: Certiorari, Prohibition, Mandamus (AS TO WHOM DIRECTED)
§ Certiorari – Person exercising judicial or quasi-judicial function
§ Prohibition – Person exercising judicial, quasi-judicial or ministerial function
§ Mandamus – Person exercising ministerial function
2. Quo Warranto
§ Jurisdiction: SC, CA or RTC exercising jurisdiction over the territorial area where the
respondent resides.
§ Limitation: It must be commenced within one year after the cause of such ouster, or the
right of the petitioner to hold such office or position, arose.
§ Comply with the requisites of initiatory pleading.


Remedial Law Review Notes on Final Examination Gardiano

SPECIAL PROCEEDINGS
Settlement of Estate
1. Multiple Appeals is followed in settlement proceeding.
§ How to appeal? Record on appeal is required.
§ Period of appeal: 30 days
§ See Rule 109 for orders or judgments from which appeal may be taken

2. Probate Court has only a limited jurisdiction.
§General Rule: Probate Court cannot rule on the issue of ownership. File it with a regular
court, in a separate proceeding.
§ Exceptions: Ownership may be provisionally determined by the probate court
a. For the purpose of including the property in the inventory
b. Question is one of collation or advancement
c. All the heirs submit to the jurisdiction of the court, provided no interests of third
persons are affected.

3. What is the remedy against extrajudicial settlement of estate by agreement between heirs?
§ Complaint for annulment of extrajudicial settlement

4. Allowance of will is conclusive as to its due execution and validity.
§ One cannot be convicted of a criminal case of forgery once the will is probated.
§ What are the remedies available against an order allowing a will? Note: This is a
scenario when the judgment or order does not yet attain finality. Meaning, during the
30-day period.
a. Motion for Reconsideration
b. Appeal
§ Fresh period rule will not apply.

5. Statute of Non- Claims
§ What to file: All claims for money against the decedent arising from contract; all claims
for funeral expenses and expenses for the last sickness of the decedent; and judgment
for money against the decedent.
§ Where to file: In the office of the clerk of Probate Court
§ When to file: Within the time fixed in the notice which shall not be more than 12
months nor less than 6 months after the date of the first publication of the notice.
Remedial Law Review Notes on Final Examination Gardiano

§ Effect of non-compliance: The claim is BARRED.

6. Remedy of an heir entitled to the residue of the estate but not given his share (CLOSURE
AND ORDER OF DISTRIBUTION)
§ Where an heir who has been duly notified of the proceedings is not included in the
order of distribution: Move for reconsideration or appeal within 30 days from notice.
§ Where the heir and his address is known but no notice was given: File an action to
annul the judgment based on lack of jurisdiction of the probate court
§ Where the heir and his address is unknown and no notice was given to him:
o If the order of closure is not yet final: File a motion with the probate court for
the delivery of his share or Re-open the proceedings
o If the order of closure is final: File an action for reconveyance against the
distributes


Adoption

1. Jurisdiction
§ Domestic Adoption: Family Court of the province or city where the prospective adoptive
parents reside.
§ Inter-Country Adoption:
o Inter-Country Adoption Board
o RTC having jurisdiction over the child (but it must immediately transmit the
petition to the Board)
2. Petition for Adoption may contain an application for change of name.
3. Only the adoptee (child) may rescind the adoption. Never the adopter (parents).
§ Jurisdiction: Family Court of the city or province where the adoptee resides.

Special Writs
1. Jurisdiction and Venue
§ Writ of Habeas Corpus
o RTC or any judge thereof, where the detainee is detained, enforceable within its
territorial jurisdiction
o Sandiganbayan, in aid of its appellate jurisdiction
o CA or any member thereof
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o SC or any member thereof
§ Writ of Habeas Corpus in relation to Custody of Minors
o Family Court of the province or city where the petitioner resides or where the
minor may be found.
o SC or CA, or any of its members

§ Writ of Amparo
o RTC of the place where the threat, act or omission was committed or any of its
elements occurred.
o Sandiganbayan or any justice thereof
o CA or any justice thereof
o SC or any justice thereof

§ Writ of Habeas Data
o RTC where the petitioner or respondent resides, or that which has jurisdiction
over the place where the information is gathered or collected or stored, AT THE
OPTION OF THE PETITIONER
o SC, CA or Sandiganbayan when the action concerns public data files or
government offices.

§ Writ of Kalikasan
o SC
o Any station of the CA

2. Appeals (Only notice of appeal is required to perfect an appeal.)
§ Writ of Habeas Corpus
o 48 hours from notice of the judgment or final order appealed from
o To the SC under Rule 45

§ Writ of Amparo and Habeas Data
o 5 days from notice of the judgment or final order appealed from
o To the SC under Rule 45

§ Writ of Kalikasan
o 15 days from notice of the judgment or final order appealed from
o To the SC under Rule 45

Remedial Law Review Notes on Final Examination Gardiano

3. Service of summons is not required in habeas corpus petition. A writ of habeas corpus plays
a role somewhat comparable to a summons, in ordinary civil actions, in that, by service of said
writ, the court acquires jurisdiction over the person of the respondent.
4. In an Amparo petition, even if the person sought to be held accountable or responsible is a
private entity or individual, government involvement in the disappearance is an indispensable
element.
§ If there was no showing of government involvement, Writ of Habeas Corpus may be the
proper remedy.
5. What are the interim reliefs available in a writ of amparo case? (SHE ASKED THIS!!!)
§ Temporary Protection Order (TPO)
§ Inspection Order (IO)
§ Production Order (PO)
§ Witness Protection Order (WPO)
6. There is no need to file a motion for execution for an amparo and habeas corpus decision.
They are immediately executory.

7. Habeas Data in relation to Vivares vs. St. Theresa’s College
§ Habeas Data is a protection against unlawful acts or omissions of public officials and of
private individuals or entities engaged in gathering, collecting, or storing data about the
aggrieved party and his or her correspondences, or about his or her family.
§ Such individual or entity need not be in the business of collecting or storing data.
§ To “engage” means “to do or to take part in something”. What matters is that the
person or entity must be gathering, collecting or storing said data or information about
the aggrieved party or his or her family.

8. What are the prohibited pleadings in Writ of Habeas Data and Writ of Amparo?
§ Motion to dismiss (on any ground)
§ Motion for extension of time
§ Dilatory motion for postponement
§ Motion for bill of particulars
§ Counterclaim (both compulsory and permissive)
§ Cross-claim
§ Third-party complaint
§ Reply
§ Motion to declare respondent in default
Remedial Law Review Notes on Final Examination Gardiano

§ Intervention
§ Memorandum
§ Motion for reconsideration of interlocutory orders or interim relief orders (MR of Final
Orders ALLOWED. Note: Compare with Rules on Summary Procedure. This is the
reverse)
§ Certiorari, mandamus or prohibition against interlocutory order
9. Petition for relief is not prohibited.
10. What are the prohibited pleadings in Writ of Kalikasan? (Sorry I have to include this! Dito
na tayo nadali ng midterms eh so hindi na dapat tayo madapa dito.hehe)
§ Motion to dismiss
§ Motion for extension of time
§ Motion for postponement
§ Motion for Bill of Particulars
§ Counterclaims or cross-claim
§ Third-party complaint
§ Reply
§ Motion to declare respondent in default
11. Interim Reliefs in Writ of Kalikasan (SHE ALSO ASKED THIS!!!)
§ Ocular Inspection Order
§ Production or Inspection Order

Rule 103, Rule 108 and RA 9048, as amended by RA 10172

1. Subject Matter
§ Rule 103 – Change of name (surname and middle name). It may include first name or
nickname but the primary jurisdiction is the Local Civil Registrar.

§ Rule 108 – Correction of substantial errors and cancellation of entries in the civil
registrar (those enumerated in Sec. 2, Rule 108).

§ RA 9048 – Change of first name or nickname only
Correction of clerical or typographical errors such as date of birth and
change of sex. (Note: As to date of birth and sex, it must be patently clear that there was
clerical or typo error in the entry; otherwise, Rule 108 shall govern.)
But no correction must involve change in SAN (Status, Age and Nationality).
Rule 108 also governs.

Remedial Law Review Notes on Final Examination Gardiano

2. Jurisdiction and Venue
§ Rule 103 – RTC where petitioner resides
§ Rule 108 – RTC where corresponding civil registry is kept
§ RA 9042 – Local Civil Registrar (LCR) where record is kept; if migrant, with LCR of
residence or domicile; if Filipino citizen residing or domiciled abroad, with the Philippine
Consulate.

3. Publication requirement
§ Rule 103 – 1x3 (once a week for three consecutive weeks)
§ Rule 108 - 1x3 (once a week for three consecutive weeks)
§ RA 9048 – Generally, no publication. Except when change of first name and nickname,
correction of typographical error in date of birth and sex, 1x2 (once for two consecutive
weeks).

4. Appeal
§ Rule 103 – To the CA within 15 days from notice
§ Rule 108 - To the CA within 15 days from notice
§ RA 9042 – To the Civil Registrar General within 10 days from notice

5. In Rule 103, jurisdictional facts must include that the petitioner has been a bona fide resident
of the province where the petition is filed for at least three (3) years prior to the date of filing.

6. In Rule 108, the failure to implead the civil registrar would render the proceedings and the
judgment void. Whereas, in Rule 103, the local civil registrar need not be impleaded in a
petition for change of name.

7. In Rule 108, the trial court has no jurisdiction to nullify marriages and rule on legitimacy and
filiation.

8. The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as
the object of special proceedings is precisely to establish the status or right of a party or a
particular fact. In fact, Rule 108 is an adversarial proceeding.
Remedial Law Review Notes on Final Examination Gardiano

9. A petition for change of name and correction of entry may be joined in one proceeding if the
change of name and correction of entry are based on the same facts or logically connected to
each other and PROVIDED that all the requirements of Rule 103 and Rule 108 are complied
with.
§ Where is the venue? The venue should follow that for the principal proceeding.
10. RA 9042 is an administrative proceeding while Rule 108 is an adversary proceeding.

Other Special Proceedings

TAKE NOTE: This was included in the Final Exam last year. J
1. Declaration of Absolute Nullity and Annulment of Voidable Marriages
§ Jurisdiction: Family Court
§ Venue: Where the petitioner or respondent has been residing for a period of at least 6
months prior to the date of filing.
In case of non-resident respondent, where he may be found in the Philippines, at
the election of the petitioner.

2. Petition for Legal Separation
§ Same jurisdiction and venue

CRIMINAL PROCEDURE
Jurisdiction
1. What are the criminal cases governed by the Rule on Summary Procedure? (cognizable by
first-level courts such as MTC)
§ BP 22 cases
§ Violations of municipal or city ordinances
§ Violations of rental law
§ Violations of traffic laws, rules and regulations
§ All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both.
§ In offenses involving damage to property through criminal negligence where the
imposable fine does not exceed P10,000.
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2. In cases the jurisdiction of which is under Sandiganbayan, consider conspiracy of private
persons with public officials to determine criminal jurisdiction.

3. When offense deemed committed “in relation to public office”? For Sandiganbayan cases!!!
§ The offense cannot exist without the office.
§ The office is a constituent element of the crime as defined in the statute.
§ The offense must be intimately connected with the office of the offender.
§ The fact that the offense was committed in relation to the office must be alleged in the
Information.
4. Jurisdiction in Complex Crimes
§ With the trial court having jurisdiction to impose the maximum and most serious
penalty imposable of an offense forming part of the complex crime.
5. Jurisdiction in Continuing Crimes
§ The courts of the territories where the essential ingredients of the crime took place
have concurrent jurisdiction. BUT the court which first acquires jurisdiction excludes the
other courts.

Prosecution of Offenses and Civil Action/ Preliminary Investigation

1. Effect of institution of criminal action
§ It shall interrupt the running of the prescriptive period of the offense charged, UNLESS
otherwise provided in special laws.
§ However, there is no distinction between cases under the RPC and those covered by
special laws with respect to the interruption of the period of prescription.
§ The SC has held that the institution of proceedings for preliminary investigation against
the accused interrupts the period of prescription.
§ Filing of the complaint with the Prosecutor’s office already tolls the running of the
prescriptive period even if the offense is for the violation of special law.

2. Effect of institution of cases governed by Rules on Summary Procedure
§ In cases governed by summary procedure, when the complaint is filed with the Office of
the Prosecutor who then files Information in court, this already has the effect of tolling
the prescriptive period.
§ EXCEPTION: In Zaldivia Ruling, violations of ordinances has a different rule. Prescriptive
period is tolled only upon filing of information in court.
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3. Prosecution of cases governed by Rules on Summary Procedure (medyo bet nya kasi ang
summary procedure.hahaha)
§ The Complaint or Information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation.
§ EXCEPTION: In Manila and other chartered cities, the complaint shall be filed with the
office of the prosecutor.

4. Duplicity of offense

§ General Rule: A complaint of information must charge only one offense.

§ Exceptions: complex crimes, special complex crimes, continuous crimes, crimes
susceptible of being committed in various modes, crimes of which another offense is an
ingredient, when a single act violates different statutes and criminal negligence.
§ Ivler vs. San Pedro - Reckless Imprudence is a single crime, its consequences on persons
and property are material only to determine the penalty.
o Therefore, filing a complaint or information charging reckless imprudence
resulting in physical injury and reckless imprudence resulting in damage to
property will not be quashed based on duplicity of offense.

5. Amendment
§ Before the plea – The general rule is that the amendment, formal or substantial, before
the accused enters his plea may be done without leave of court.
o Exception: Any amendment before the plea, which downgrades the nature of
the offense charged or excludes any accused from the complaint or information
can be made only:
a. Upon motion by the prosecutor
b. With notice to the offended party
c. With leave of court

§ After the plea – It covers only formal amendment PROVIDED that:
a. There is leave of court; and
b. It is not prejudicial to the rights of the accused.

§ The offenses covered of amendment involve the same, attempted, frustrated,
necessarily includes or necessarily included offense.

Remedial Law Review Notes on Final Examination Gardiano

6. Substitution
§ If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense
o PROVIDED the accused shall not be placed in double jeopardy.
§ The offenses here must be two different offenses (e.g. homicide to libel). Otherwise if
same, necessarily includes or included, double jeopardy may attach.

7. Prejudicial Question
§ Nullity of marriage is not a prejudicial question to bigamy.
§ False testimony in a civil case is a prejudicial question to false testimony in criminal case.
§ There must be a determination by a higher court that the order is unjust in an unjust
interlocutory case before it is considered prejudicial to a pending case.

8. When is Preliminary investigation not required?
§ When a person is lawfully arrested without a warrant
§ When the case is governed by Rule on Summary Procedure
§ When the penalty prescribed by law is less than 4 years, 2 months and 1 day

Other salient points discussed

1. Plea Bargaining: In Estipona vs. People, plea bargaining to a lesser offense in drugs cases is
now allowed.
2. Bail as a matter of right
§ Before conviction by the first-level courts
§ After conviction by the second-level courts
§ Before conviction by the RTC of an offense NOT punishable by death, reclusion
perpetua or life imprisonment
§ Before conviction by the RTC of an offense punishable by death, reclusion perpetua
or life imprisonment AND the evidence of guilt is NOT STRONG.
o NOTE: BAIL IS DENIED Before conviction by the RTC of an offense punishable by
death, reclusion perpetua or life imprisonment AND the evidence of guilt IS
STRONG.


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3. Bail as a matter of discretion
§ Upon conviction by the RTC of an offense NOT punishable by death, reclusion
perpetua or life imprisonment
§ After conviction by the RTC wherein a penalty of imprisonment exceeding 6 months
but not more than 20 years is imposed, and not one of the circumstances below is
present and proved:
a. Recidivism
b. Previous escape
c. Commission of another offense while on probation, parole
d. Probability of flight
e. Undue risk of commission of another crime.
o NOTE: Bail is DENIED After conviction by the RTC wherein a penalty of
imprisonment exceeding 6 months but not more than 20 years is imposed, and
ANY of the circumstances above is present and proved.

4. Motion to Quash
§ 4 Non-waivable grounds
o Failure to charge an offense
o Lack of jurisdiction over the offense charged
o Extinction of the offense or penalty; or
o Double jeopardy
NOTE: BY JURISPRUDENCE, the officer who filed the information had no
authority to do so is considered as a non-waivable ground.

§ In any of the foregoing cases, the motion to quash may be filed even after plea.

5. When would double jeopardy apply even if the termination of the case was with the express
consent of the accused?
§ Dismissal of the case upon a demurrer to evidence
§ Dismissal based on the denial of the accused’s right to speedy trial

6. Double jeopardy will not attach when the case is provisionally dismissed.
Why?
§ A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party.
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7. Rule on provisional dismissal
§ Offenses punishable by imprisonment not exceeding 6 years and/or fine of any amount:
BECOME PERMANENT 1 year after issuance of the order without the case having been
revived.
§ Offenses punishable by imprisonment of more than 6 years: BEFORE PERMANENT 2
years after issuance of the order without the case having been revived.

8. What if you filed a motion to quash, then it was denied and trial ensued. Afterwards, you
want to allege that the criminal action has been extinguished? What do you file?
§ File a motion to dismiss

9. If there is a violation of the constitutional right to a speedy trial, what do you file?
§ Motion to dismiss on the ground that the right to a speedy trial was violated

10. How to discharge an accused to be a state witness?
§ There shall be a hearing in support of the discharge where the prosecution shall present
evidence and the sworn statement of the proposed state witness to prove that:
o There is absolute necessity for the testimony of the accused whose discharge is
requested.
o There is no direct evidence available for the proper prosecution of the offense
committed, except the testimony of the said accused.
o The testimony of said accused can be substantially corroborated in its material
points.
o Said accused does not appear to be the most guilty.
o Said accused has not at any time been convicted of any offense involving moral
turpitude.

Remedial Law Review Notes on Final Examination Gardiano

EVIDENCE
Rules on Evidence

1. We can always invoke the two tests or axioms of admissibility in her hypo when all else
fails!
§ RELEVANCY + COMPETENCY = ADMISSIBILITY
§ Compare this with Rule on Electronic Evidence:
The electronic evidence must be:
o Relevant
o Competent
o Authenticated in accordance with the Rules on Electronic Evidence
§ On DNA Evidence
The evidence must also be relevant and competent. Specifically, it must comply with the
chain of custody of DNA Evidence. Meaning, the evidence must not be contaminated.

2. MATERIALITY
Evidence may be RELEVANT but it may no longer be MATERIAL. For example, the rule on
implied admission (her example on due execution and genuineness of a promissory note).

§ Those facts or issues already admitted in the pre-trial is an IMMATERIAL EVIDENCE.

3. RELEVANCY
Evidence must have a relation to the fact in issue as to induce belief as to its existence or
non-existence. For instance, do not present a gun in prosecution of violation of RA 9165.
That is objectionable as the gun has no relation to the charge for violation of RA 9165.

4. BEST EVIDENCE RULE
§ Available only as objection against a DOCUMENTARY EVIDENCE. Never against an object
or testimonial evidence.
§ In invoking exceptions to the best evidence rule, always lay the basis or foundation for
the admission of secondary evidence.
§ Duty to account all the originals
All original copies (duplicates) must be accounted for before using copies thereof. For
example, the contents of a lost or destroyed marriage contract cannot be proved by a
mere photocopy thereof. Marriage contracts are in quadruplicate copies and they are all
considered as originals. So if one original copy was lost or destroyed, the offeror has the
duty to account the remaining three originals. Thus, the duty to account for the loss of
all the originals before proceeding to secondary evidence.
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5. Parol Evidence Rule not applicable to strangers
§ The parol evidence rule does not apply to those who are not parties to the [written
instrument] and do not base a claim on it. Hence, they cannot be prevented from
seeking evidence to determine the complete terms of the deed of assignment.
§ The Best Evidence Rule applies to all kinds of writings; whereas, Parol Evidence Rule
applies only to documents which are contractual in nature.

§ When can parol evidence be admitted?
Provided that a party puts in issue in its pleading any of the four (4) items enumerated
in the second paragraph of Rule 130, Section 9, "a party may present evidence to
modify, explain or add to the terms of the agreement.
§ General rule. — For parole evidence to be admissible, the grounds must be put in
issue in the pleadings.
§ Exception. —Even if it was not put in issue, if parol evidence was presented and
it is not objected to, such objection is deemed waived.

EXAMPLES:
§ Where the document refers to a particular person or thing but there are
two or more person having the same name, or two or more things to
which the description in the writing may apply.
§ In the Last Will of Mr. Magneto, there is a provision which states that “I
bequeath all my properties to my college girlfriend” xxx and then it turns
out he has 100 college girlfriends.
§ In Palanca vs. Fred Wilson & Co., the phrase “capacity of 6,000 liters” is
used in connection with a distilling apparatus was held to be a latent
ambiguity which had to be clarified by parol evidence to determine
whether it meant the receiving, treating, or the producing capacity of the
machine.

6. Presumption of competency
§ Every person is presumed to be a qualified witness.
§ As a general rule, when a witness takes the witness stand, the law, on ground of public
policy, presumes that he is competent. The court cannot reject the witness in the
absence of proof of his incompetency. The burden is, therefore, upon the party
objecting to the competency of a witness to establish the ground of incompetency

EXAMPLES:
A. May a blind man be a witness?
Answer: Yes. He can still perceive through his other senses.

B. May he be a witness to a rape case?
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Answer: Yes. The fact that he cannot see does not mean he cannot
anymore perceive. If the victim cries for help, he can still be able to hear her
cries, and he can even help. Thus, he is qualified to be a witness.

C. May a blind be a witness in falsification of public document?
Answer: No. He cannot see. He will never know the difference between
an original document and a Xerox copy through his other senses. The subject
matter requires the sense of sight.

7. Marital Disqualification Rule (Spousal Immunity)
§ The marital disqualification rule provides that during their marriage, a spouse may not
testify as a general rule, for or against the other spouse, without the latter’s consent.
In order that the rule will apply, it is necessary that the following requisites must concur:
(1) The spouse for or against whom the testimony is offered is a party to the case;
(2) The spouses are legally married;
(3) The testimony is offered during the existence of the marriage;
(4) The testimony is offered without the consent of the affected spouse; and
(5) The case is not one of the exceptions in the rule.

§ Spousal immunity not applied to testimony of estranged spouse
ALVAREZ VS. RAMIREZ - Like all other general rules, the marital disqualification rule has
its own exceptions, both in civil actions between the spouses and in criminal cases for offenses
committed by one against the other. For instance, where the marital and domestic relations are
so strained that there is no more harmony to be preserved nor peace and tranquility which may
be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity
of interests disappears and the consequent danger of perjury based on that identity is non-
existent.

8. Survivorship Disqualification Rule or the Dead Man’s Statute
§ The "Dead Man's Statute" provides that if one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental disabilities, the surviving
party is not entitled to the undue advantage of giving his own uncontradicted and
unexplained account of the transaction.

§ Who may invoke the disqualification?
The following may invoke the disqualification by reason of death or insanity of the
adverse party:
(1) Executor of a deceased person;
(2) Administrator of a deceased person;
(3) Other representative of a deceased person; or
(4) Representative of a person of unsound mind.

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§ Against whom it may be invoked?
The disqualification by reason of death or insanity of the adverse party may be used as
an objection against the testimony of the following:
(1) Parties to a case;
(2) Their assignors; or
(3) Persons in whose behalf a case is prosecuted.

EXAMPLE:
D borrowed Php500,000 from C evidenced by a promissory note. W
witnessed the loan transactions. C assigned the note to P. D died. P brought a
money claim against the estate of D.

(1) May P testify on ante-mortem facts regarding the loan?
Answer: No. Parties in a case upon a claim or demand against the estate of a
deceased person cannot testify as to any matters of a fact occurring ante-
mortem.

(2) May P present C as a witness?
Answer: No. The prohibition applies to “assignors of parties” to a case.

(3) May P present W as a witness to testify on ante-mortem facts?
Answer: Yes. The Dead Man’s Statute disqualifies only the parties or
assignors, or a person in whose behalf the case is prosecuted.

9. Admission by a conspirator
§ Why is a person bound by an act of a conspirator?
In conspiracy, the act of all is the act of one. There is unity of intention; there is a
commonality of design.

§ Where applicable?
The rule on admission by conspirator applies only to extrajudicial acts or statements
(People of the Philippines vs. Janjalani, G.R. No. 188314, January 10, 2011).

§ Where not applicable?
In People v. Serrano, it was held that the rule on admission by conspirator does not
apply to testimony given on the witness stand at the trial where the party adversely affected
thereby has the opportunity to cross examine the declarant.

§ Requisites for applicability
An admission by a conspirator is admissible against his co-conspirator if:
(1) Such conspiracy is shown by evidence aliunde;
(2) The admission was made during the existence of the conspiracy; and
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(3) The admission relates to the conspiracy itself (Tamargo v. Awingan, G.R. No.
177727, January 19, 2010).
Note, however, that the abovementioned requisites are not required in admissions
during the trial as the co-accused can cross-examine the declarant. Besides, these are
admissions after the conspiracy has ended.

§ Admissions inadmissible after the conspiracy
Extrajudicial admissions made by a conspirator after the conspiracy had terminated and
even before trial are also not admissible against the co-conspirator.

EXAMPLES:
(1) X, Y, and Z conspired to rape AAA. X went to a bar. X got really drunk.
X was so drunk he told Y and Z their plans to rape Sasha Grey. Can the act or
declaration of X affect Y and Z?
Answer: Yes. The act or declaration was during the existence of the
conspiracy.

(2) X, Y, and Z conspired to murder AAA. AAA died. X, Y and Z were
arrested. The charged against X was dropped because he made a deal to be a
state witness. When X was presented to testify, defense objected based on Res
Inter Alios Acta. Rule on the objection
Answer: Overrule. The rule on Res Inter Alios Acta is not applicable since
first, the conspiracy no longer exists; and second, X is testifying based on his
personal knowledge. Therefore, it is admissible.

10. Hearsay Evidence Rule
§ This rule postulates that a witness can testify only to those facts which he knows of his
personal knowledge; meaning those information which he was able to witness or
perceive through his own senses.

§ Example of hearsay written evidence: Judicial Affidavit without the affirmation of the
affiant (REMEMBER THIS!!!)

§ What is an independent relevant statement?
It is a statement which is relevant to a fact in issue, regardless of whether or not they
are true. They are offered not to prove the truth or veracity of a fact in issue. They are offered
to prove that such statements are actually made, to prove identity, to show a condition, to
prove lack of credibility.

§ Other exceptions to Hearsay Evidence Rule
(1) Child abuse cases (Sec. 28, A.M. No. 004-07-SC); and
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(2) Hearsay Evidence Rule is not applicable under the Rule on Electronic Evidence.

11. Dying declaration
§ In order for a dying declaration to be held admissible, the following requisites must
concur:
(1) At the time the declaration was made, the declarant must be under the
consciousness of an impending death;
(2) The declaration must concern the cause and surrounding circumstances of the
declarant's death;
(3) The declarant is competent as a witness;
(4) The declaration must be offered in a in a case wherein the declarant’s death is the
subject of the inquiry (People v. Serenas, G.R. No. 188124, June 29, 2010); and
(5) The declaration must be complete in itself (People v. De Joya y Cruz, G.R. No. 75028,
November 8, 1991).

§ Does the declaration need to be verbal?
A dying declaration need not always be verbal. It may be expressed orally, in writing or
through body language.

EXAMPLE:
While driving her car, Jill Valentine was shot from behind. Before she
died, she was able to see from her rear view mirror that it was Nemesis who shot
her. She tried to spell Nemesis with her blood on her windshield but she was
only able to write down the letters “NEME”, then she died. A case against
Nemesis was filed wherein the letters “NEME” written on Jill Valentine’s
windshield was offered as a dying declaration. Atty. Wesker, counsel for the
accused, objected. Rule on the objection.

Answer: Sustained. The letters “NEME” written on her windshield is not a dying
declaration. It is incomplete. It is not even a declaration. It is susceptible to
different interpretations. It might not even be a name. It could be something
else, like an address, or her facebook password.

12. Kinds of res gestae
(1) Spontaneous Statements or Exclamation. — Statements made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto with respect to
the circumstance thereof.
(2) Verbal Acts. — Statements accompanying an equivocal act material to the issue, and
giving it a legal significance.

EXAMPLE:
Fallones' act of forcing himself into Alice is a startling event. And Amalia
happened to be just outside his house when she heard Alice cry out "tama na,
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tama na!"When Fallones opened the door upon Amalia's incessant knocking,
Alice came out from behind him, uttering "Amalia, may napkin na binigay
si Romy o." The admissibility of Alice's spontaneous statements rests on the valid
assumption that they were spoken under circumstances where there had been
no chance to contrive. It is difficult to lie in an excited state
and the impulsiveness of the expression is a guaranty of trustworthiness (People
v. Fallones y Labana, G.R. No. 190341, March 16, 2011).

13. Offer and Exception to offer
§ General Rule : The court shall consider no evidence which has not been formally
offered.
§ Exception: People vs Libnao
The court may consider evidence not formally offered as long as
a. It is identified by the testimony.
b. It is duly recorded and incorporated in the records of the case.

Special Rules
1. Rule on Examination of Child Witness
§ Every child is presumed to be a witness.
§ Any child, regardless of age, can be a competent witness if he can
o Perceive;
o Is perceiving;
o Can make known his perception to others

§ Sexual Abuse Shield Rule
The following evidence is not admissible in any criminal proceeding involving alleged
child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior;
and
(2) Evidence offered to prove the sexual predisposition of the alleged victim.
As an exception, evidence of specific instances of sexual behavior by the alleged victim
to prove that a person other than the accused was the source of semen, injury, or other
physical evidence shall be admissible (Sec. 30, Rule on Examination of Child Witness, A.M. No.
00-4-07-SC).

2. Rule on Electronic Evidence
§ Functional Equivalent Rule
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Documentary evidence shall be deemed to include an electronic evidence, since an
electronic evidence is a functional equivalent of paper-based documents.
§ Best Evidence Rule and Parol Evidence Rule also apply.
§ Photocopies of facsimile are not electronic evidence.
§ Text messages are considered ephemeral electronic communication.
o Text messages shall be proven by the testimony of a person who was a party to
the same or has personal knowledge thereof.

§ Electronic Business Record is an exception to the Hearsay Evidence Rule.
Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts,
events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or
near the time of or from transmission or supply of information by a person with knowledge thereof,
and kept in the regular course or conduct of a business activity, and such was the regular practice to
make the memorandum, report, record, or data compilation by electronic, optical or similar means,
all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence.

3. Rule on DNA Evidence

§ Non-compliance with the chain of custody rule is a ground for admissibility.
INCOMPETENT. Excluded by the Rule on DNA Evidence.

§ Post-conviction DNA Testing
It may be available, without need of prior court order, to the prosecution or any person
convicted by final and executor judgment PROVIDED that:
o A biological sample exists;
o Such sample is relevant to the case; and
o The testing would probably result in the reversal or modification of the judgment
of conviction.

§ Remedy: WRIT OF HABEAS CORPUS!!!

GOOD LUCK AND GOD BLESS!!!! J